Contrary to New England School of Law adjunct professor Wendy Murphy’s predictions that government investigations of the University and Harvard Law School would be resolved by May 20, both cases remain active. Murphy opened the cases against the schools for allegedly violating Title IX, the law that prohibits discrimination based on sex in educational institutions that receive federal funds, in mishandling sexual assault complaints in 2010.
Last month, Murphy said that she predicted that the enactment of the Campus Sexual Violence Elimination Act would affect the outcome of the ongoing investigations by allowing the federal government to justify the schools’ policies. The SaVE Act requires colleges and universities to clarify the rights of sexual assault victims and the means by which they can report offenses.
“What might have been illegal is now legal under the Campus SaVE Act,” she said in a May 2 interview. “It’s likely they’re not going to get in trouble at all with the [Department of Education's Office for Civil Rights], not because what they did was acceptable, but because the law has changed to their benefit.”
Murphy filed lawsuits against the Department of Education and the Department of Health and Human Services on Feb. 18 to stop the enforcement of SaVE, signed into law as part of the Violence Against Women Reauthorization Act of 2013 and enacted in March of this year. She argued that SaVE was unconstitutional in that it would violate women’s due process and equal protection rights.
On May 2, Murphy said she expected the Department of Education to close the cases against the University and Harvard Law School before Attorney General Eric Holder responded to her lawsuits against the DOE and DHHS so that he could declare the second set of lawsuits moot.
However, the Department of Education did not resolve the investigations by the time that Holder filed motions on May 20 to dismiss Murphy’s pending lawsuits against the governmental agencies. He cited “lack of subject matter jurisdiction and/or failure to state a claim” as procedural grounds for dismissal. Lack of subject matter jurisdiction means the court does not have the power to hear the type of claim brought before it, while failure to state a claim means the facts presented are insufficient to obtain a legal remedy.
Holder did not respond to a request for comment. University spokesperson Martin Mbugua declined to comment.
Four years ago, Murphy filed the lawsuits against the University and Harvard Law School largely because, she said, in addressing sexual violence complaints, these institutions did not apply the preponderance of the evidence standard. This standard would later be recommended by the Department of Education in the 2011 Dear Colleague Letter telling colleges how they should comply with Title IX.
Harvard and Princeton are the only two Ivy League schools not using the preponderance of the evidence standard.
Under the preponderance standard, the defendant is guilty if more than 50 percent of the evidence says so. Since most civil cases use the preponderance standard, Murphy said the SaVE Act subjects violence against women to worse policies than violence against any other class of people on campus, such as those based on race and nationality.
However, Foundation for Individual Rights in Education Legislative and Policy Director Joe Cohn called Murphy’s argument nonsense. He noted that all of the other civil rights cases she cited would be decided under the preponderance of the evidence in courts, which have many protections, such as judges and juries of people’s peers, that are absent in campus judiciary systems.
“So long as schools aren’t building in other procedural safeguards for the involved students, raising the standard of evidence makes sense because the only real protection in place for the accused student is that the complainant has to prove the case,” he said, adding that schools that do not build in robust due process should at least use the clear and convincing evidence standard.
Under clear and convincing, about 75 percent of the evidence must indicate guilt to result in a conviction. The University applied an analogous “clear and persuasive” evidence standard at the time of Murphy’s lawsuits and continues to do so.